In NLRB v. Noel Canning, 134 S. Ct. 2550, the U.S. Supreme Court held that several appointments to the National Labor Relations Board (NLRB) were invalid, which resulted in multiple decisions issued by the improperly-appointed Board being vacated.  Included among those decisions was the Board's holding, issued in Banner Health System dba Banner Estrella Medical Center and James A. Navarro, 358 NLRB No. 93 (2012), that employers could not instruct investigation witnesses to maintain confidentiality absent a case-specific showing that witnesses needed protection, evidence was in danger of being destroyed, or testimony was in danger of being fabricated.

 

After a de novo review of the 2012 decision, a properly empaneled Board issued a decision on June 26, 2015 holding in relevant part that it was unlawful for a human resources representative to make a blanket request that employees involved in a workplace investigation refrain from discussing the matter with coworkers while the investigation was ongoing. The Board reasoned that "Employees have a Section 7 right to discuss discipline or ongoing disciplinary investigations involving themselves or coworkers.  Such discussions are vital to employees' ability to aid one another in addressing employment terms and conditions with their employer.  Accordingly, an employer may restrict those discussions only where the employer shows that it has a legitimate and substantial business justification that outweighs employees' Section 7 rights."  Circumstances wherein this showing may be made include those where witnesses need protection, evidence is in danger of being destroyed, testimony is in danger of being fabricated, and there is a need to prevent a cover-up.  Banner Health Systems dba Banner Estrella Medical Center